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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDermott v department of finance & personnel [2007] NIIT 1280_05 (6 March 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/1280_05.html Cite as: [2007] NIIT 1280_05, [2007] NIIT 1280_5

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1280/05

CLAIMANT: KRIS McDERMOTT

RESPONDENT: DEPARTMENT OF FINANCE & PERSONNEL

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(a) The claim was presented to the tribunal out of time.

(b) It is not just and equitable to extend the time for presentation of the claim. Accordingly the claim is dismissed.

(c) In the circumstances, it is not necessary to determine whether or not the claimant is a disabled person within the terms of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman: Mr Travers (sitting alone)

Appearances:

The claimant was represented by Mr Noel Griffin of NIPSA.

The respondent was represented by Martin Wolfe, Barrister-at-Law instructed by the Departmental Solicitor's Office.

REASONS

ISSUES

1. At the case management discussion on 2^nd October 2006, the following issues were identified for determination at this pre-hearing review:-

(a) Whether the claimant was a disabled person for the purposes of the Disability Discrimination Act 1995 ["DDA"], as amended;

(b) Whether the claimant lodged his claim of disability discrimination within the statutory time limit; and

(c) If not, is it just and equitable in all the circumstances of the case for the tribunal to consider the complaint.

2. The tribunal proposes to deal initially with the questions identified at 1(b) and (c) above. In the event that the tribunal concludes that it has jurisdiction to entertain the claim, the tribunal will go on to consider the question of whether the claimant was a disabled person for the purposes of the DDA.

FACTS

3. At all material times, the claimant was employed by the respondent as an administrative officer.
4. The claimant had an absence from work from 03/02/04 until 23/11/04.
5. Following his return to work, the respondent's "Managing Attendance Section" ["MAS"] wrote to him by letter dated 10/01/05. The MAS is responsible for monitoring all sickness absences in line with published procedures. The letter informed the claimant that, "For a period of 6 months from the date of this letter you will be excluded from consideration for promotion/selection procedures including temporary promotion, deputising, trawls, lateral movement, interest circulars, recruitment competitions and from applying for a career break. CSC7/04 refers." The letter also stated that it should be regarded as a written warning which would remain on the claimant's file for a period of two years.
6. By letter dated 31/01/05, the claimant replied. He stated, "Whilst I fully appreciate the implications of my sick leave record, and the department's statement of intent, I must appeal the specific details of my warning. I fully accept a written warning per se, but with the possibility of EO2 selection boards during this calendar year, I would ask that the department reconsider my ban from [promotion/recruitment competitions, lateral movement]".
7. In his letter the claimant also asked why his ban dated from the time of the respondent's January letter, rather than his return to work in November.
8. MAS replied by letter dated 08/02/05. The reply refused reconsideration of the six month prohibition on participating in recruitment procedures, however the date of commencement of the prohibition was brought forward to 29/11/04. Accordingly, it was now due to expire at the end of May 2005.
9. The claimant did not reply to the letter of 08/02/05 until over two months later, by e-mail received by the respondent on 15/04/05. In his e-mail the claimant again requested that the prohibition on his participation in recruitment exercises be removed. He wished to be considered in a forthcoming promotion board.
10. MAS replied by letter dated 21/04/05. The letter, in effect, repeated MAS's refusal to move from the position set out in their letter of 08/02/05.
11. The claimant sent a further e-mail on 29/04/04. Again he protested about the terms of the prohibition.
12. MAS replied on 04/05/05. The terms of the letter were again negative, and included the line, "This matter should now be considered closed".
13. The claimant's response was to e-mail a complaint about his treatment to the Permanent Secretary. The e-mail was sent on 24/05/05.
14. In a reply to the claimant dated 09/06/05, the Permanent Secretary stated, "From my consideration of the papers I am fully satisfied that the inefficiency procedures have been applied correctly."
15. By an e-mail dated 10/06/05, the claimant replied to the Permanent Secretary repeating his dissatisfaction with the way that his case had been dealt with. In the course of the e-mail the claimant wrote, "I was never in any doubt that the matter had been adhered to as per departmental guidelines. I do, however remain resolute that these guidelines are drastically counterproductive in my specific case and that consideration should be given to this."
16. A copy of each item of correspondence sent by the claimant was, at the same time as it was sent to the respondent, sent to a representative of NIPSA.
17. The claimant stated that he sought advice from a representative of his union in or around March/April 2005. The tribunal found the claimant's evidence on this point to be vague. The tribunal is not satisfied that the claimant sought advice prior to the expiry of the time limit for presenting a claim. The tribunal notes the content of the claimant's e-mail to MAS dated 29/04/05. At the bottom of the e-mail the claimant has typed a comment addressed to Margaret Coyle of NIPSA, "I would be grateful if you could now advise me how I can best carry this matter forward though [sic] your respective channels."
18. During the course of the pre-hearing review, it was agreed between the parties that the act of alleged discrimination complained of was the initial written warning sent to the claimant on 10/01/05.
19. The claim form was presented on 08/09/05.

LAW

20. A claim of unlawful discrimination contrary to the DDA must be presented to the tribunal, "before the end of the period of three months beginning when the act complained of was done." [Schedule 3 paragraph 3(1) of the DDA].
21. A tribunal may consider a claim which is presented out of time if, "in all the circumstances of the case, it is just and equitable to do so." [Schedule 3 paragraph 3(2) of the DDA].
22. In British Coal Corporation -v- Keeble [1997] IRLR 336, the Employment Appeal Tribunal considered the circumstances in which a tribunal might extend the time for presentation of a claim on the just and equitable ground. At paragraph 8 of that decision, Smith J. referred with approval to the criteria applied by the courts when making decisions under the Limitation Act 1980:

"It requires the court to consider the prejudice which each party would suffer as the result of the decision to be made and also to have regard to all the circumstances of the case and in particular, inter alia, to –

(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(c) the extent to which the party sued had co-operated with any requests for information;

(d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action;

(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action."

CONCLUSION

23. The act of alleged discrimination took place on 10/01/05. The claim should therefore have been presented in early April 2005, at the latest. It was not presented until 08/09/05, approximately five months out of time.
24. At the heart of the claimant's concern was his six month exclusion from, "consideration for promotion/selection procedures including temporary promotion, deputising, trawls, lateral movement, interest circulars, recruitment competitions and from applying for a career break." This temporary prohibition expired at the end of May 2005.
25. In June 2005 the Permanent Secretary told the claimant that he was, "fully satisfied that the inefficiency procedures have been applied correctly." In reply, the claimant stated that, "I had never been in any doubt that the matter had been adhered to as per departmental guidelines." In other words, from the date the written warning was issued in January 2005, the claimant was in no doubt that the published inefficiency procedures had been correctly followed. By implication, the claimant accepted that the prohibition which was imposed on his participating in promotion/selection exercises was a course which the respondent was entitled to take under the published inefficiency procedures.
26. The claimant presents as an intelligent and articulate man. The tribunal finds that it must have been clear to him when he received MAS's letter dated 08/02/05, that the respondent was not going to resile voluntarily from the imposition of a prohibition on participation in promotion/selection exercises. It was at that point, that the claimant should either have presented his claim to the tribunal, or sought out definitive advice as to how to do so. The tribunal would have expected either course to have been taken with some sense of urgency. After all, the letter of 08/02/05 indicated that the prohibition would expire at the end of May 2005.
27. In fact, the claimant did not reply to the letter of 08/02/05 until 15/04/05, a date which fell outside the three month time limit for presentation of a claim. The tribunal finds that the claimant did not act with sufficient promptness in dealing with his potential claim. If he had done so, there is no reason why the claim could not have been presented in time.
28. In all the circumstances of the case, the tribunal finds that it would not be just and equitable to extend time for presentation of the claim. Consequently, the claim is dismissed.

Chairman:

Date and place of hearing: 6 March 2007, Belfast.

Date decision recorded in register and issued to parties: